Paul Millus, an attorney in the New York office of Meyer, Suozzi, English & Klein, P.C, says that while Shazor’s case may have survived judgment without a trial, proving racial discrimination actually occurred will be much tougher.

‘To prove any type of discrimination, an employee has to prove four things: that the employee is a member of a protected class; that the employee is qualified for the position (they don’t have to be great at it, just qualified); that the employee suffered an adverse employment action; and that the adverse action was accompanied by an inference of discrimination.’

‘Generally, people establish the first three things fairly quickly. It’s the fourth thing that you have to be able to prove and that’s much harder. It helps plaintiffs case[s] if they can show they were replaced by someone in a different class, but it’s not enough if they can’t show that there was discriminatory animus behind their firing,’ Millus says. ”Whether there is an additional aspect that supports a discrimination claim will be determined based on the totality of circumstances, rather than just on who their replacement was.’

Same category replacements

Employers should not think they are off the hook if the replacement employee does fall into the same category as the terminated worker. ‘Having lots of African-American employees doesn’t mean that you aren’t discriminating against any one individual. If the employee has nothing to offer to support their claim beyond the fact that are a member of a protected class and they were fired, showing that you replaced them with another member of that class can help put an end to the claim. But if they have other evidence, it won’t help you,’ Millus warns.